93 Fairfield Pty Ltd ACN 621 146 058 as Trustee for 93 Fairfield Unit Trust v Chief Executive, Department of Transport and Main Roads (No 2)

The case of 93 Fairfield Pty Ltd ACN 621 146 058 as Trustee for 93 Fairfield Unit Trust v Chief Executive, Department of Transport and Main Roads (No 2) involved a dispute over the compensation for land that was resumed by the Department of Transport and Main Roads for future railway land. The Court of Appeal was asked to determine the appropriate compensation date for the land and whether the Department should be awarded costs for the litigation. The applicant, 93 Fairfield Pty Ltd, opposed the recovery of costs by the Department, arguing that it was an involuntary litigant and thus should not be required to bear the costs of the proceedings.

The legal issues before the Court were whether the Department was entitled to recover its costs from the applicant, and if the Court should award costs to the Department as the successful party in the original proceedings. The Court had to consider the principle of voluntary participation in litigation and whether the applicant's opposition to the costs application was sufficient to warrant an award of costs against it.

The Court of Appeal held that the applicant was an involuntary litigant in the original proceedings and thus should not be liable for the Department's costs. The Court found that the applicant had a reasonable and bona fide defence to the Department's application for resumption, which was sufficient to warrant an exemption from the usual rule that the losing party pays the winner's costs. The Court also considered the public interest in ensuring that compulsory acquisition proceedings do not unfairly burden those who are involuntarily involved in the process. The Court concluded that awarding costs to the Department in these circumstances would not serve the public interest and would potentially deter landowners from defending their rights in similar proceedings.

The Court ordered that there would be no order as to costs, meaning that neither party would be required to pay the other's costs of the litigation. This decision highlights the importance of protecting the rights of involuntary litigants in compulsory acquisition proceedings and ensuring that the costs of litigation do not unfairly burden those who are not truly at fault.